The Constitutional Division of Powers in Canada

AuthorMaureen McTeer
[  ]
– chapter five –
The Constitutional Division of
Powers in Canada
Each country has its own system of government. Canada is no exception.
As a federal state, Canada has two levels of government — federal and prov-
incial, which exercise legislative authority alone or in concert with each
other. Municipal governments are created by the provinces and territories
and provide services of a purely local nature within their established muni-
cipal boundaries. Exclusive federal legislative authority is set out in section
 of the Constitution, and section  contains those subjects under the
provinces’ authority. Both levels of government may also share concurrent
jurisdiction in certain areas. Where they do, and where conict arises as to
jurisdiction, the federal legislation prevails, unless it is found to have been
exercised in an exclusively provincial domain. Finally, where the subject
matter is covered by neither section, the federal government has a residuary
power to legislate “to make laws for the peace, order, and good govern-
ment of Canada, in relation to all matters not coming with the classes of
subjects by this Act assigned exclusively to the legislatures of the provinces.
Nowhere is that division of power thornier than in the area of health.
Only a brief analysis is oered in this chapter to help situate the reader in
understanding the two decisions — those of the Quebec Court of Appeal
and the Supreme Court of Canada that followed the introduction of
the assisted human reproduction legislation in .

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